Kitonga & 2 others v Hashtag Biz Hub Co. Ltd
The bottom line
#Kenya's Court of Appeal refused to pause a land dispute ruling, confirming courts cannot stay 'dismissal' orders and that money losses can be compensated later.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants demonstrated an arguable appeal under rule 5(2)(b)
- 2.Whether the intended appeal would be rendered nugatory if stay is not granted
- 3.Whether the court has jurisdiction to grant a stay of a negative order
Key legal issues
#Arguability of the intended appeal
The grounds raised, including jurisdiction under section 3(3) of the Law of Contract Act and variation of contract terms, were arguable, satisfying the first limb.
The court applied its settled standard that an arguable appeal need not succeed, only warrant full argument. Citing Ombija, it held one arguable point suffices and found the applicants' grounds on jurisdiction, possession and contract variation arguable, leaving merits to the appeal bench.
Whether the appeal would be rendered nugatory
The nugatory limb failed because the dispute concerns a sale agreement whose price is known and part of the purchase price (Kshs 5,500,000) was already received, so any loss is compensable in damages.
Applying Reliable Bank Ltd v Norlake Investments, the court held nugatory means worthless, futile, invalid or trifling, assessed case by case. Given the admitted receipt of Kshs 5,500,000 and a clearly stated purchase price, damages would adequately compensate, so stay was unwarranted.
Jurisdiction to stay a negative order
The High Court order was a dismissal of the applicants' stay application, a negative order incapable of being stayed, so the court had no jurisdiction under rule 5(2)(b).
Relying on Thika School of Medical and Health Sciences v Rao, the court reiterated that rule 5(2)(b) relief is unavailable where the order below is a dismissal or striking out, or where no party was ordered to do or refrain from doing anything capable of being restrained.
Legal principles established
#- There is no jurisdiction under rule 5(2)(b) to grant a stay of a negative order, i.e. an order of dismissal or striking out, or where the court below ordered no act capable of being restrained.
- An applicant under rule 5(2)(b) must satisfy the twin principles of an arguable appeal and that the appeal will be rendered nugatory absent stay.
- Where any loss flowing from execution can be adequately compensated by damages, the nugatory limb is not satisfied.
Court orders
#- 1.The application is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Nairobi
- Environment and Land Court Case No. 67 of 2019
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the orders of the High Court (ELC) and the Chief Magistrate's Court pending the intended appeal
Applicants failed the second limb of the rule 5(2)(b) test; any loss is compensable by damages; and the court lacks jurisdiction to stay a negative order
Costs
The application is dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of the foregoing is that this application has failed to satisfy the twin principles for grant of stay under rule 5 (2) (b) of the Court of Appeal rules. Accordingly, the application is dismissed with costs to the respondent.
there is no jurisdiction to grant relief under rule 5(2) (b) of this court's rules where the High Court's order either resulted in a dismissal or a striking out orders or, alternatively, where the court did not order either party to do or refrain from doing something capable of being restrained
an “arguable” appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court
it does not mean only worthless, futile, or invalid, it also means trifling
Issues in the judgment
#Prayer (ii) is duplicated in the motion as extracted, once inter partes and once pending the intended appeal.
The motion refers to 'the learned High Court Judge' while the ELC judge is an Environment and Land Court judge; the court also inconsistently calls the trial forum High Court.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitonga & 2 others v Hashtag Biz Hub Co. Ltd", Case Analysis (2022). Civil Appeal (Application) 327 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1392/eng@2022-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.